Darnell R. Brock v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                         Oct 23 2020, 9:47 am

court except for the purpose of establishing                                          CLERK
                                                                                  Indiana Supreme Court
the defense of res judicata, collateral                                              Court of Appeals
                                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darnell R. Brock,                                        October 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-276
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         49G21-1804-F2-11218
                                                         49G21-1809-F2-30954
                                                         49G21-1810-F4-35728



Shepard, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020               Page 1 of 11
[1]   The State opened three cases against Darnell R. Brock, charging him with the

      following offenses in total: eleven charges of dealing in or possessing controlled

      substances, possession of a handgun by a serious violent felon, and being a

      habitual offender. Brock pleaded guilty as charged without a plea agreement.

      The trial court entered judgment on eight of the eleven charges plus the

      sentencing enhancement and sentenced Brock to forty-six years, with four years

      suspended to community corrections. Brock appeals, and we affirm.


                                                    Issues
[2]   Brock raises two issues, which we restate as:


              I.       Whether the trial court abused its discretion in identifying
                       aggravating sentencing factors; and


              II.      Whether Brock’s sentence is inappropriate.


                               Facts and Procedural History
[3]   In July 2017, detectives with the Indianapolis Metropolitan Police Department

      (“IMPD”) investigated Brock after receiving information that he dealt in

      controlled substances. The investigation culminated in the detectives visiting

      Brock at his home on August 8, 2017. Brock granted them written permission

      to search his home, and they found controlled substances and guns.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020   Page 2 of 11
                             1
[4]   On April 5, 2018, the State filed charges in Case Number 49G21-1804-F2-

      11218 (“F2-11218”), alleging Brock had committed two counts of dealing in a

      narcotic drug weighing ten grams or more, both Level 2 felonies; three counts

      of possession of a narcotic drug, all Level 3 felonies; and unlawful possession of

      a firearm by a serious violent felon, a Level 4 felony. The State subsequently

      filed a habitual offender sentencing enhancement. Officers arrested Brock on

      April 7, 2018, and he was released on bond.


[5]   Four months later, on August 2, 2018, IMPD detectives were dispatched to a

      towing company’s impound yard to investigate a report of a possible controlled

      substance found in an impounded vehicle. When the detectives arrived, one of

      them recognized Brock, who was standing across the street from the yard.


[6]   Inside the yard, the detectives learned that Brock had presented his

      identification to an employee of the company. Brock had then asked the

      employee to retrieve a personal item that was hidden in his car. The employee

      had opened a secret compartment, found a plastic bag containing a powdery

      substance, and called the police. Subsequent testing revealed the substance was

      heroin. Brock was gone by the time the detectives went back outside.


[7]   Four weeks after that, on September 4, 2018, Brock failed to appear for a

      hearing in F2-11218, and a warrant was issued for his arrest. On September 14,




      1
       The record does not provide an explanation for the gap in time between the search of Brock’s home in 2017
      and the filing of charges in 2018.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020               Page 3 of 11
      2018, the State filed charges arising from the salvage yard events, alleging Brock

      had committed the offenses of dealing in a narcotic drug weighing ten grams or

      more, a Level 2 felony, and possession of a narcotic drug, a Level 3 felony, in

      connection with the heroin that was found in his car. Cause Number 49G21-

      1809-F2-30954 (“F2-30954”). A warrant was issued for his arrest in that case.


[8]   Next, on October 5, 2018, IMPD officers acting on a tip found Brock in a

      parking lot and arrested him. Officers searched his vehicle and discovered a

      variety of controlled substances. A few weeks later, the State opened Case

      Number 49G21-1810-F4-35728 (“F4-35728”), charging Brock with two counts

      of possession of a narcotic drug, both Level 4 felonies; possession of cocaine, a

      Level 5 felony; and possession of marijuana, a Class A misdemeanor.


[9]   Brock pleaded guilty as charged in all three cases, without a plea agreement.

      On January 8, 2020, the trial court held a hearing, during which it accepted

      Brock’s guilty plea in the three cases. The court declined to enter judgment on

      several counts based on double jeopardy. Next, the trial court sentenced Brock

      as follows, starting with F2-11218:


       Level 2 felony dealing in a narcotic drug                    18 years plus 8 years for the
                                                                    habitual offender enhancement

       Level 2 felony dealing in a narcotic drug                    18 years

       Level 3 felony possession of a narcotic drug                 15 years

       Level 4 felony unlawful possession of a                      12 years
       firearm by a serious violent offender




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020    Page 4 of 11
       All sentences are to be served concurrently, for a total sentence of twenty-six

       years.


[10]   In F2-30954, the court sentenced Brock to twenty years on one conviction of

       Level 2 felony dealing in a narcotic drug, with four years suspended to

       community corrections. It ordered Brock to serve this sentence consecutively to

       the sentence in F2-11218 but indicated that it would consider modifying this

       sentence after Brock served eight years.


[11]   As for F4-35728, the court imposed the following sentences:


        Level 4 possession of a narcotic drug                            6 years

        Level 4 possession of a narcotic drug                            6 years

        Level 5 possession of cocaine                                    3 years

        Class A misdemeanor possession of marijuana                      180 days



       The sentences are to be served concurrently, for a total of six years. In addition,

       the court ordered Brock to serve the six-year sentence consecutively to the

       twenty-six-year sentence in F2-11218 but concurrently with the twenty-year

       sentence in F2-30954, for an aggregate sentence of forty-six years, with four

       years suspended to community corrections, plus the possibility of sentence

       modification in the future. This appeal followed.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020   Page 5 of 11
                                    Discussion and Decision
                             I. Sentencing – Aggravating Factors
[12]   Brock argues the trial court erred by considering an aggravating sentencing

       factor that was unsupported by evidence. Sentencing decisions rest within the

       sound discretion of the trial court. Lamar v. State, 

915 N.E.2d 193

(Ind. Ct.

       App. 2009). We review the court’s sentencing decision for an abuse of

       discretion. Mays v. State, 

982 N.E.2d 387

(Ind. Ct. App. 2013). Among the

       ways in which the trial court may abuse its sentencing discretion is issuing a

       sentencing statement that explains reasons for imposing a sentence, “but the

       record does not support the reasons . . . .” Anglemyer v. State, 

868 N.E.2d 482

,

       490 (Ind. 2007), clarified on reh’g, 

875 N.E.2d 218

(2007).


[13]   The trial court determined that Brock’s criminal history, his being on probation

       when he committed the offenses in F2-11218, and the nature and circumstances

       of the offenses were aggravating factors. In addition, as to F2-30954, the court

       noted as an aggravating factor that Brock was out on bond in F2-11218 when

       he committed the offense. While discussing the details of the nature and

       circumstances of the offenses, the court noted that in F2-11218, detectives

       found 150 grams of heroin and 21 grams of fentanyl in Brock’s house, and in

       F2-30954, detectives found 45 grams of heroin in Brock’s car.


[14]   Brock claims the trial court’s discussion of specific drug amounts was

       unsupported by evidence. He appears to be correct. During the guilty plea and

       sentencing hearing, Brock admitted only that he dealt in controlled substances


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020   Page 6 of 11
       in amounts that exceeded the levels set by the applicable statutes (ten grams).

       And the State explicitly declined the trial court’s offer to present evidence,

       choosing instead to merely discuss the amounts of drugs at issue in its
                                        2
       sentencing presentation. For the sake of argument, the trial court may have

       erred in considering the specific amounts of the controlled substances to be part

       of the nature and circumstances of the offenses due to the lack of properly

       admitted supporting evidence. But even if the trial court is found to have

       abused its discretion in sentencing, the error is harmless if the sentence imposed

       was not inappropriate. Mendoza v. State, 

869 N.E.2d 546

(Ind. Ct. App. 2007),

       trans. denied. We thus turn to Brock’s inappropriateness claim.


                                II. Sentencing - Inappropriateness
[15]   Brock argues his forty-six-year sentence is too harsh and asks the Court to

       reduce it to forty-one years, with ten years served on community corrections

       and five years served on probation. Article 7, section 6 of the Indiana

       Constitution authorizes the Court to review and revise sentences. This

       authority is implemented through Indiana Appellate Rule 7(B), under which we

       may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.




       2
        The presentence investigation report does not identify the amounts of controlled substances relevant to each
       offense. In addition, although the report references the probable cause affidavits, the affidavits were not
       attached to the report.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020                  Page 7 of 11
[16]   The principle role of the Court’s review under Appellate Rule 7(B) is to

       “attempt to leaven the outliers.” Robinson v. State, 

91 N.E.3d 574

, 577 (Ind.

       2018). Sentencing is principally a discretionary function, and deference to the

       trial court “should prevail unless overcome by compelling evidence portraying

       in a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 

29 N.E.3d 111

, 122 (Ind. 2015). The defendant bears the burden of demonstrating

       that the sentence is inappropriate. 

Robinson, 91 N.E.3d at 577

.


[17]   The advisory sentence is the starting point the General Assembly has selected as

       appropriate for the crime committed. Pierce v. State, 

949 N.E.2d 349

(Ind.

       2011). The General Assembly has also designated minimum and maximum

       sentences for each level of felony offenses. When Brock committed his

       offenses, the sentencing statutes provided:


             Offense             Advisory          Minimum           Maximum                  Statute
                                 Sentence          Sentence          Sentence

        Level 2 felony        17 and ½            10 years          30 years             Ind. Code § 35-
                              years                                                      50-2-4.5 (2014)

        Level 3 felony        9 years             3 years           16 years             Ind. Code § 35-
                                                                                         50-2-5 (2014)

        Level 4 felony        6 years             2 years           12 years             Ind. Code § 35-
                                                                                         50-2-5.5 (2014)

        Level 5 felony        3 years             1 year            6 years              Ind. Code § 35-
                                                                                         50-2-6 (2014)



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020            Page 8 of 11
        Class A               N/A                 N/A               1 year               Ind. Code § 35-
        misdemeanor                                                                      50-3-2 (1977)



       Further, a trial court imposing a habitual offender enhancement may increase a

       felony sentence by six to twenty years. Ind. Code § 35-50-2-8(i) (2017).


[18]   The trial court’s sentences for Brock’s convictions were for the most part only

       slightly above the advisory levels set by statute. The court imposed only one

       maximum sentence, on Brock’s conviction of Level 4 felony unlawful

       possession of a handgun by a serious violent felon, and it ran that sentence

       concurrent. In addition, Brock’s sentence for Level 3 felony possession of a

       narcotic drug was one year shy of the maximum. But the trial court also

       ordered Brock to serve a good many of the sentences in the three cases

       concurrently, such that the total sentence was well short of the maximum

       possible sentence the trial court could have imposed. Further, the trial court

       offered to consider modifying Brock’s sentence in the future.


[19]   Brock argues that the nature of his offenses is not egregious. We disagree.

       When we exercise our review and revision power under Indiana Appellate Rule

       7(B), we may consider any evidence included in the record. Spitler v. State, 

908 N.E.2d 694

(Ind. Ct. App. 2009), trans. denied.


[20]   In F2-11218, Brock was on probation at the time the detectives began their

       investigation into his activities. Turning to F2-30954, Brock was out on bond in

       F2-11218 when he sought to retrieve the heroin from his impounded car,

       demonstrating that he was not deterred from committing crimes even when

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020            Page 9 of 11
       facing serious criminal charges. Finally, in F4-35728, when the officers

       searched Brock’s car after his arrest, they found an array of controlled

       substances that was more consistent with dealing, rather than possession for

       personal use. In short, the nature of the offenses shows Brock abjectly refused

       to comply with the law and intended to continue committing serious offenses.


[21]   Turning to the character of the offender, Brock was thirty-five years old at

       sentencing. He has accumulated seven prior felony convictions: two counts of

       C felony possession of a handgun without a license; two counts of D felony

       possession of a narcotic drug; D felony resisting law enforcement; D felony

       possession of marijuana; and Level 3 felony dealing in a narcotic drug. The

       marijuana conviction and one of the handgun convictions were the predicate

       felonies for the habitual offender sentencing enhancement in F2-11218. In

       addition, Brock has prior misdemeanor convictions for driving with a

       suspended license (3 convictions), possession of marijuana, and possession of a

       controlled substance.


[22]   Brock accrued his convictions over several years. In addition, over time he has

       escalated his criminal activity from possessing controlled substances to dealing

       in them. It also reflects poorly on Brock that he continues to possess firearms

       after repeated convictions. He has been afforded probation and home

       detention, and he has violated the terms of probation four times.


[23]   Brock argues that he has taken responsibility for his crimes because he pleaded

       guilty without an agreement. While a guilty plea that provides no benefit to a


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020   Page 10 of 11
       defendant is generally entitled to mitigating weight, such a plea “is not

       necessarily a significant mitigating factor” where the evidence of guilt is

       substantial. Scott v. State, 

840 N.E.2d 376

, 383 (Ind. Ct. App. 2006)

       (determining Scott’s guilty plea was entitled to less weight because an

       eyewitness could identify Scott as the robber), trans. denied. In each of Brock’s

       three cases, the evidence of his guilt was substantial. He has failed to

       demonstrate that his sentence is inappropriate. It follows that any error by the

       trial court in identifying aggravating sentencing factors was harmless.


                                                Conclusion
[24]   For the reasons stated above, we affirm the judgment of the trial court.


[25]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-276 | October 23, 2020   Page 11 of 11

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